Ex Parte Custody Orders in California
In emergency situations, courts can issue an ex parte custody order to protect a child’s health and safety. Here’s what you need to know about California Family Code 3064.
If there is evidence of immediate harm to the child from a parent, California courts may issue ex parte custody orders that either create or modify an existing order. Courts may also issue ex parte custody orders if there is an immediate risk that a parent will remove the child from the state, thus violating the custody agreement. These orders are temporary and last until an evidentiary hearing.
What Are Ex Parte Orders?
In civil procedure, the term “ex parte” refers to decisions made by a court by request from one side of a legal issue without waiting for a response from the other side. Overall, these orders are rare. This is due to the fact that the other side might have their right to due process violated as they were not allowed to respond to any accusations. Because ex parte orders run the risk of violating constitutional rights, these orders are usually temporary and are granted in emergency situations, such as in the cases of temporary restraining orders or emergency child custody orders.
Ex Parte Custody Orders in California
As outlined in California Family Code 3064, California courts may only grant ex parte custody orders (that is, a custody order that is requested only by one parent and does not require a response from the other parent) for two general reasons: if there is evidence of an immediate risk of harm to the child or if there is evidence of that the child might be removed from the state. In other words, a California court will only consider granting or modifying a child custody order on an ex parte basis if the parent has enough evidence to convince the court that the child is in immediate danger under the other parent’s custody or that the other parent will remove them from California.
California Family Code 3064 specifically outlines two categories that constitute “immediate harm” in reference to granting an ex parte child custody order:
- The child’s parent has committed acts of domestic violence either of recent origin or as part of a larger pattern.
- The child’s parent commits sexually abusive acts either of recent origin or as part of a larger pattern.
The court’s definition of immediate harm is not limited to these two categories. The court reserves the right to grant ex parte relief if they believe a situation to be immediately dangerous to the child, even if explicit domestic violence or sexual abuse is not present.
After reviewing the application for the ex parte order, a judge can either approve all aspects of the application, only some aspects of the application, or none of the application. If approved, the order will be only temporary, lasting until an evidentiary hearing to determine if a more permanent order modification is needed.
Related: How to Get an Emergency Custody Order in California
When to Request an Ex Parte Custody Order
The purpose of requesting ex parte orders is to cut through the extensive wait time involved in acquiring court orders through normal means. Therefore, if a person believes that their child is in immediate danger under an existing custody agreement and as such will be placed in greater danger if forced to wait many weeks until a new agreement is reached, they should file a request for an ex parte custody order.
While having an attorney is not required to file for an ex parte order, contact a family law specialist is recommended. There is nothing more important than a child’s safety, and an experienced attorney will help ensure that the child receives the protection that they need. Her Lawyer specializes in finding clients the perfect lawyer for their situation, so contact us if you are considering an ex parte custody order and want to build the strongest case possible.
FAQs
How long do ex parte custody orders last in California?
Ex parte custody orders are temporary orders that last only until an evidentiary hearing. This is because, by definition, ex parte orders do not consult the other side and thus run the risk of denying the other side their right to due process if the order extends too long.
My ex-spouse is a gambler, and I’m worried about the negative influence this will have on our child. Can I request an ex parte custody order?
Most likely not. Ex parte custody orders are reserved for situations in which the court believes there is an immediate risk to the child, either in regards to their safety or in regards to leaving the state. The moral failings of a parent do not rise to this level, unless the gambling is placing the child in obviously dangerous situations.
Should I request an ex parte custody order?
If you believe that your child is in immediate danger under a current custody order or that the other parent might take the child out of the state, you should request an ex parte custody order. There is nothing more important than the health and safety of your child, so do not delay. Contact us to be put in touch with an expert family law attorney to build the strongest case possible.
Contact Us
If you or a loved one is seeking an ex parte custody order, contact us. We’ll get you in touch with the most qualified attorney for your unique legal matter. Get your free consultation with one of our California Child Custody Attorneys today!